State v. Ruiz

• Decision Date: 02 April 2008
• Docket Number: 05C45322.,A129934.
• Citation: 219 Or. App. 148,182 P.3d 246
• Parties: STATE of Oregon, Plaintiff-Appellant, v. Fernando G. RUIZ, Defendant-Respondent.
• Court: Oregon Court of Appeals

182 P.3d 246

219 Or. App. 148

STATE of Oregon, Plaintiff-Appellant, v. Fernando G. RUIZ, Defendant-Respondent.

05C45322.

A129934.

Court of Appeals of Oregon.

Argued and Submitted July 20, 2007.

Decided April 2, 2008.

Douglas F. Zier, Assistant Attorney General, argued the cause for appellant. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Jason E. Thompson, Salem, argued the cause for respondent. With him on the brief was Ferder Casebeer French & Thompson, LLP.

Before EDMONDS, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge.

SERCOMBE, J.

The state appeals an order granting defendant's motion to suppress evidence seized from a warrantless search of his automobile. The state contends that the seizure without a warrant was lawful under the state constitution because of the exigent circumstances of the automobile's mobility or, alternatively, because the search was incident to defendant's arrest. We agree that the search was reasonable under the state constitution because of exigent circumstances and reverse the order granting defendant's motion to suppress.

Trooper Madsen stopped defendant's vehicle because it was weaving for several miles in a southbound lane of traffic on Interstate 5. Madsen later testified that defendant appeared to be "very nervous," his speech was "slow and lethargic," he had "open sores on his arms and face" and "white foam" at the corners of his mouth, his eyes were "real droopy," and he appeared to be having a hard time staying awake. Based on those observations, Madsen concluded that defendant was under the influence of either alcohol or a narcotic. Madsen obtained defendant's identification and requested a warrant check. The dispatcher reported that defendant had an outstanding arrest warrant. Madsen removed defendant from the automobile and placed him under arrest based on the warrant. Two other state troopers arrived at the scene to assist.

After patting down defendant for weapons and giving Miranda warnings, Madsen asked defendant for permission to search his vehicle, and defendant refused. Defendant did, however, consent to the administration of field sobriety tests. Defendant's performance on those tests convinced Madsen that defendant was under the influence of narcotics. After defendant was placed in the back of Madsen's patrol car, one of the troopers noticed a baggie on the ground where defendant had taken the field sobriety tests. The baggie contained a white substance that field tested positive for methamphetamine. Madsen asked defendant if the baggie belonged to him, and defendant denied ownership. Madsen then questioned defendant about drug use, and defendant responded that he was a "junkie" and that he had taken heroin just a few hours before being stopped by Madsen.

While defendant and Madsen were talking in the patrol car, a Salem police officer arrived with a police dog trained to detect drugs. After a canvass of the outside of the vehicle, the dog indicated the presence of drugs inside the rear passenger door. The police dog was deployed to investigate the inside of the automobile, and the dog directed attention to a black nylon toiletries bag lying on the floor behind the front passenger seat. The officer opened the toiletries bag and found a clear plastic bag that contained a brown substance that appeared to be tar heroin. Field testing confirmed that impression. A state trooper searched the center console between the front seats of the vehicle and found a Colt .45 automatic pistol and a Crown Royal bag that held $25,440 in cash.

Defendant was indicted for delivery of a Schedule I controlled substance (heroin), possession of a Schedule II controlled substance (methamphetamine), being a felon in possession of a firearm, and driving while under the influence of intoxicants. Before trial, defendant moved for the suppression of "all evidence, including derivative evidence, intended to be used against defendant at trial," because "the search and seizure of any and all evidence was unlawful pursuant to Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution."¹ His supporting memorandum of law cited authority that warrantless searches are unreasonable under the state and federal constitutions, unless conducted under a recognized exception to the requirement of a search warrant, and relied solely on State v. Kruchek, 156 Or.App. 617, 969 P.2d 386 (1998), aff'd by an equally divided court, 331 Or. 664, 20 P.3d 180 (2001), to support his contention that the motion to suppress should be allowed. In that case, this court held that, once police impound a motor vehicle, any exigency created by the vehicle's mobility is extinguished under Article I, section 9, of the Oregon Constitution.

The state responded that the search was reasonable without a warrant under Article I, section 9, because the vehicle was not impounded before the search, and the exigent circumstances of mobility continue until its impoundment. Alternatively, the state argued that the search was proper as incident to defendant's arrest.

Madsen testified at the suppression hearing that, at the time of the search, the automobile was "under [his] control," that a tow would be ordered when the investigation was complete, but that he "wasn't at that time going to call a tow at all." The trial court commented at the suppression hearing:

"I don't think this is an auto exception case because the police had possession of the car. In other words, the car was not going to drive off. They were going to impound it, so there wasn't any exigent circumstances requiring search."

Following further briefing, the trial court issued a letter opinion that stated:

"The Court has read all the cases cited by both parties and it is this Court's opinion that State v. Kruchek, 156 Or.App. 617, 969 P.2d 386 (1998), and State v. Resler, 163 Or.App. 328, 987 P.2d 1269 (1999), apply and the search shall be suppressed.

"The attorney for the defendant shall prepare the order."

The resulting order granted the motion to suppress, without further elaboration, "for the reasons stated in the [d]efendant's motion to suppress."

We review the trial court's legal conclusion that the search was unreasonable under Article I, section 9, of the Oregon Constitution for errors of law appearing upon the record. ORS 138.220. A trial court's findings of historical fact are binding on review if there is supporting evidence in the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). If findings are not made, and there is "evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion." Id.

The parties renew on appeal their contentions below. However, defendant adds the argument that there is a separate basis to affirm in this case. He contends that the trial court ruling was based on both the state and federal constitutions and, because the state failed to advance arguments in its opening brief on the federal constitutional question, it waived its right to object to the order on federal constitutional grounds. Defendant relies on two cases for the proposition that, when a trial court makes a decision on multiple theories, an appellant must show on appeal that all theories were erroneous. See Roop v. Parker Northwest Paving Co., 194 Or.App. 219, 236, 94 P.3d 885 (2004), rev. den., 338 Or. 374, 110 P.3d 113 (2005) ("[W]here plaintiffs fail to challenge the alternative basis of the trial court's ruling, we must affirm it."); State ex rel SOSCF v. Duncan, 164 Or.App. 610, 993 P.2d 818 (1999), rev. den., 330 Or. 361, 6 P.3d 1102 (2000) (failure to challenge alternative grounds for termination of parental rights as determinative of appeal). Defendant also cites the concurring opinions in State v. Stoudamire, 198 Or.App. 399, 416, 108 P.3d 615 (2005) (Armstrong, J., and Landau, J., respectively, concurring) (discussing failure of state to challenge federal constitutional justification for search by appeal of only state constitutional issue).

In Roop, Duncan, and Stoudamire, however, the trial courts explicitly decided the cases on alternative grounds that were not disputed on appeal. Here, the trial court ruling was based on "the reasons stated in the [d]efendant's motion to suppress." Defendant's supporting memorandum to the motion references the Fourth Amendment but does not contain any distinct analysis of that federal constitutional provision. The memorandum states only that Kruchek "dictates this case." The trial court's letter opinion also cites only Kruchek and State v. Resler, 163 Or.App. 328, 987 P.2d 1269 (1999), rev. den., 334 Or. 190, 47 P.3d 485 (2002). Kruchek was decided on state constitutional grounds alone, and Resler relied on Kruchek as controlling its outcome. Defendant did not argue below that the Fourth Amendment provides greater protection against automobile searches than Article I, section 9. We therefore conclude that the trial court decided the motion based on Article I, section 9, and not on the Fourth Amendment. Therefore, there was no need for the state to claim as error on appeal any application of the federal constitution.

Nor is this case an appropriate one to address any Fourth Amendment issue. On appeal, defendant does not argue that the search of the automobile might violate the Fourth Amendment if it satisfied the requirements of Article I, section 9. Because the parties did not make any distinct federal constitutional arguments in the proceedings below, and because defendant does not pursue that argument on appeal, we decline to consider the federal constitutional question. See Outdoor Media Dimensions, Inc. v. State of Oregon, 331 Or. 634, 659, 20 P.3d 180 (2001) ("right for the wrong reason" principle permits reviewing court "as a matter of discretion" to affirm lower court on...